McDougall v. CRC Indus.

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DAVID A. MCDOUGALL, individually and as Trustee for the Next-of-Kin of Decedent Cynthia A. McDougall, Plaintiff, v. CRC INDUSTRIES, INC., and JOHN DOE COMPANY DEFENDANTS #1- 10, Defendants.

CIVIL No. 20-1499 (JRT/LIB)

United States District Court, D. Minnesota

August 25, 2023

David E. Bland, Michael D. Reif, Ryan W. Marth, Tara D. Sutton Philip L. Sieff, and Rashanda C. Bruce, ROBINS KAPLAN LLP for plaintiff.

Robert J. Gilbertson, David J. Wallace-Jackson, and Virginia R McCalmont, FORSGREN FISHER MCCALMONT DEMAREA TYSVER LLP, for defendant CRC Industries, Inc.

MEMORANDUM OPINION AND ORDER ON PARTIES' MOTIONS FOR SUMMARY JUDGMENT AND TO EXCLUDE EXPERT TESTIMONY

JOHN R. TUNHEIM, United States District Judge

This case arises from the death of Cynthia McDougall, who was killed in Baudette, Minnesota in a vehicle crash caused by Kyle Neumiller. At the time of the accident, Neumiller was allegedly driving his motor vehicle while using Defendant CRC Industries, Inc.'s (“CRC”) computer dust remover (the “CRC Duster”) to get high. Mrs McDougall's surviving spouse and next-of-kin David McDougall brings this action-in his individual capacity and as court-appointed wrongful death Trustee-against CRC and John Doe Companies 1-10, alleging various products liability claims, negligence, breach of warranty, deceptive and unlawful trade practices, and public nuisance. The John Doe Company Defendants are individuals and entities that may have sold, distributed, manufactured, or marketed the CRC Duster, but whose identities are unknown at this time.

Following the Court's dismissal of some counts and McDougall's voluntary withdrawal of others, CRC brings a summary judgment motion for McDougall's remaining claims: strict liability for design defect, strict liability for failure to warn, and negligence. Both parties also bring cross motions to exclude expert testimony. Because genuine disputes of material fact remain as to the duty CRC owed Mrs. McDougall and CRC's alleged negligent conduct, the Court finds that summary judgment is inappropriate and thus will deny CRC's motion. The Court will grant in part and deny in part the experts' reports and testimony.

BACKGROUND

I. FACTUAL BACKGROUND

A. The Parties and the Crash

On July 22, 2019, Cynthia McDougall was driving a vehicle on State Highway 172 in Baudette, Minnesota when she was struck and killed in a crash with another vehicle. (2^nd. Decl. of Eric C. Ernstene (“Ernstene Decl.”), Ex. K (“Neumiller Dep.”) at 2-3, Feb. 15, Docket No. 100-11.) The other vehicle was driven by Kyle Neumiller, who crossed over the center line, drove into oncoming traffic, and struck Ms. McDougall's car head on. (Id. at 2-3; 1^st Ernstene Decl., Ex. A, Sept. 2, 2020, Docket No. 20.) At the time of the collision, Neumiller was allegedly intoxicated due to ingesting gas from a cannister of compressed gas dusting spray manufactured by CRC (“CRC Duster”), and his loss of body functions and inability to maintain control of his vehicle is attributed to his intoxication. (Compl. ¶¶ 6, 172-77, July 1, 2020, Docket No. 1.)^[1]

CRC is a corporation registered in Pennsylvania and is a wholly owned subsidiary of Berwin Corporation. (2^nd Ernstene Decl., Ex. C (“Rudnick Dep.”) at 3, 7, Feb. 15, 2023, Docket No. 100-3.) CRC is responsible for all aspects of CRC Duster's life cycle in the chain of commerce, including design, research, manufacturing, production, distribution, labeling, and marketing. (Id. at 20.) CRC Duster is marketed, sold, and distributed in Minnesota and other states. (Id. at 50; Neumiller Dep. at 12.)

B. The Product - CRC Duster

CRC Duster is a branded compressed gas dusting spray that is similar to other compressed gas dusters, also referred to as keyboard cleaners, compressed air, or dust removers. (2^nd Ernstene Decl., Ex. D (“Selisker Dep.”) at 19, Feb. 15, 2023, Docket No. 100-4; Rudnick Dep. at 31-32.) The spray canister has a trigger that opens a valve to release a stream of pressurized gas from the spray nozzle, which can remove dust and debris without damaging surface finishes or sensitive components. (Rudnick Dep. at 1920.) Dust removers typically contain a pressurized volatile, fluorinated hydrocarbon gas called 1,1-difluoroethane (“DFE”), which is used in many consumer products, including deodorants, hairspray, and cleaning products. (2^nd Ernstene Decl., Ex. A (“CRC Dep.”) at 9, Feb. 15, 2023, Docket No. 100-1; Rudnick Dep. at 20.)

DFE is a central nervous system depressant, which, when inhaled, can cause psychoactive intoxicating side effects like euphoria, hallucinations, and delusions. (CRC Dep. at 8; Rudnick Dep. at 20-21; 3^rd Ernstene Decl., Ex. 1 (“Reznikoff Report”) at 6, Feb. 15, 2023, Docket No. 106-1.) Ingestion of DFE can also cause drowsiness, dizziness, suffocation, loss of consciousness, paralysis, and in some cases, cardiac arrest. (3^rdErnstene Decl., Ex. 3 (“Marose Report”) at 6, Feb. 15, 2023, Docket No. 106-3; Decl. of Rashanda C. Bruce (“Bruce Decl.”), Ex. 48 (“CRC Material Safety Data Sheet”) at 2, Mar. 8, 2023, Docket No. 124-14.)

DFE has long been associated with substance abuse, in part because products containing DFE are inexpensive and widely available at retail locations. (See 4^th Ernstene Decl., Ex. A (“Perron Dep.”) at 10-13, Mar. 8, 2023, Docket No. 119.) Reports of the spontaneous deaths of teenagers who died after inhaling (also known as “huffing”) volatile hydrocarbons first appeared in the 1960s. (Bruce Decl., Ex. 32 (“Poznak Study”), Mar. 8, 2023, Docket No. 124-2; Ex. 36 (“Avella Case Report”) at 3, Mar. 8, 2023, Docket No. 124-5.)

Since the 1990s, various governmental agencies, advocacy organizations, and researchers have gathered data and published studies on abuse of inhaled propellants, including dust removers. (See Bruce Decl., Ex. 34 (“Broussard Case Report”) at 3, Mar. 8, 2023, Docket No. 124-3; Ex. 35 (“Xiong Study”) at 3, Mar. 8, 2023, Docket No. 124-4.) The Complaint cites multiple incidents from 1997 to the present time of injury and death associated with dust remover inhalation while driving. (Compl. ¶¶ 65-129.) A 2010 study found that, while inhalant abuse of substances like gasoline or paint has been in decline since 1993, propellant abuse, including dust removers, began increasing around 1998 and has continued growing since then. (Id. ¶ 63.)

CRC has known at all relevant times that people intentionally inhale duster for its intoxicating effects. (CRC Dep. at 12; 2^nd Ernstene Decl., Ex. E (“Grey Dep.”) at 30-31, Feb. 15, 2023, Docket No. 100-5.) CRC previously advertised that CRC Duster contained a bittering agent (or “bitterant”) to prevent inhalant abuse, although information about the bitterant is no longer included in CRC Duster's current Safety Data sheet. (CRC Dep. at 914; Selisker Dep. at 6, 14.) CRC discontinued use of the bitterant following its inability to deter product abuse. (CRC Dep. at 9-14.) McDougall asserts that CRC knew the bitterant was ineffective as a deterrent and that there were multiple safer, feasible, and affordable alternatives available to CRC related to the duster's formula and packaging that would have more effectively prevented duster abuse and the injury to Ms. McDougall. (Compl. ¶¶ 146-56, 183-92.)

At some point between 2012 and 2017, CRC revised the Safety Data Sheet product label for CRC duster, removing information about the anesthetic effects of misusing the product and replacing it with a warning that “[d]eliberately inhaling this product can lead to death from asphyxiation depending on concentration and duration of exposure.” (Selisker Dep. at 13.) McDougall claims these warnings were inadequate regarding the potential harms associated with inhalation of CRC Duster and provided no warnings related to potential harms to innocent bystanders or related to operation of a motor vehicle. (Compl. ¶¶ 142-44.)

II. PROCEDURAL HISTORY

McDougall filed a Complaint against Defendants CRC and John Does #1-10 (“Defendants”) on July 1, 2020. (See generally Compl.) McDougall alleged eight counts: Strict Products Liability - (1) Defective Design, (2) Manufacturing Defect, and (3) Failure to Warn; (4) Negligence; (5) Breach of Express Warranty and (6) Implied Warranty; and (8) Public Nuisance. (Id.) McDougall also brings (7) statutory claims pursuant to Minn. Stat. § 8.31, subd. 3a, alleging violations of the Minnesota Unlawful Trade Practices Act, False Statement in Advertising Act, and Unlawful Practices Act. (Id.) McDougall seeks damages and injunctive relief. (Compl. at 63-64.) The requested injunctive relief includes prohibiting the sale of CRC Dusters that include DFE to minors; limiting the sale of CRC Duster with DFE to one can per consumer in a 30-day period; and prohibiting CRC from designing, manufacturing, distributing, and selling dust removers containing DFE without an effective physical mechanism or chemical composition to deter inhalant abuse. (Id.)

On September 2, 2020, CRC filed a 12(b)(6) Motion to Dismiss. (Mot. Dismiss, Sept. 2, 2020, Docket No. 17.) The Court granted in part the motion as to the public nuisance and Minnesota DTPA claims, finding that McDougall failed to meet his pleading burden. (Order on Mot. Dismiss at 2, Mar. 3, 2021, Docket No. 43.) The Court denied the motion as to the remaining claims. (Id.) Following the order, CRC filed its Answer and the parties proceeded to discovery. (Answer, Mar. 17, 2023, Docket No. 42.) McDougall later voluntarily withdrew his claims for strict liability (manufacturing defect), breach of express and implied warranties, and the remaining Minnesota statutory claims. (Meet & Confer Statement, Feb. 15, 2023, Docket No. 101.)

CRC brought its current Motion for Summary Judgment on February 15, 2023. (Def.'s Mot. Summ. J., Feb. 15,...